Delay of Affirmative Action Ban Rejected

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A federal appeals court on Friday ordered Michigan's universities to stop using affirmative action in admissions immediately -- rejecting an agreement approved by a lower court to let the institutions keep affirmative action for the current admissions cycle. The appeals court's analysis also suggested that groups challenging Michigan's new statewide ban on affirmative action face an uphill climb.

The ruling was a blow to the efforts of universities to mitigate the short-term effects of the Michigan Civil Rights Initiative, adopted by a wide margin of voters in November, which bars public colleges from using affirmative action in admissions. Higher education leaders opposed the measure and some groups that favor affirmative action have sued in federal court to overturn the initiative, which is commonly known as Proposal 2.

Friday's ruling by the U.S. Court of Appeals for the Sixth Circuit threw out an agreement that had been pushed hard by Michigan and Wayne State Universities and the University of Michigan. Under an accord they reached with the state's attorney general last month, the universities were allowed to push back the start date of Proposal 2 from December 23 to after the completion of this year's admissions and financial aid cycle.

A federal district judge approved the agreement last month, but a challenge to it reached the appeals court. The challenge came from Eric Russell, a white man who is applying to the University of Michigan law school this year and who said he would be disadvantaged by the university keeping affirmative action for the rest of the academic year.

Higher education officials have offered a number of reasons why -- regardless of one's feelings on Proposal 2 -- it would be wrong to adopt it in the middle of an admissions cycle. A statement by the University of Michigan -- issued after the lower court approved the delay in Proposal 2 and before the latest ruling -- said that it would be "nearly impossible to flip a switch on Dec. 23 and change our procedures abruptly." The statement notes that applicants are relying on information the university provided months ago, and that some applications have already been reviewed and acted on. A delay, the university said, would "ensure that our process is consistent and fair."

But the appeals court not only rejected that argument, but also suggested that the larger challenge to Proposal 2's legality wouldn't get very far in federal court.

The appeals court, at times taking a harshly critical tone, found that there were no issues appropriate for federal court intervention in the start of Proposal 2. And the appeals court criticized the lower court for agreeing with the universities and the attorney general that their agreement represented the interests of all involved. If Eric Russell and other white male applicants would be disadvantaged by the delay in Proposal 2, which the appeals court accepted as fact, the parties in the agreement couldn't say that they were representing all interests.

More broadly, the appeals court said that challenges raised to Proposal 2 were unlikely to succeed in federal court. Critics of affirmative action have said that Proposal 2 violates the First Amendment and the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The appeals court said that wasn't true. "The First and Fourteenth Amendments to the United States Constitution, to be sure permit states to use racial and gender preferences under narrowly defined circumstances. But they do not mandate them, and accordingly they do not prohibit a state from eliminating them," the appeals court said.

It is unclear how the universities will respond and few people could be reached over the holiday weekend. Julie Peterson, a spokeswoman for the University of Michigan, said that the institution was reviewing the decision and wasn't yet ready to announce next steps. She noted that the university was not admitting students over the weekend anyway.